Commonwealth of the Northern Mariana Islands Transitional Worker Classification, 55094-55112 [E9-25808]

Agencies

• DEPARTMENT OF HOMELAND SECURITY

[Federal Register Volume 74, Number 206 (Tuesday, October 27, 2009)]
[Rules and Regulations]
[Pages 55094-55112]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-25808]


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DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 103, 214, 274a, and 299

[CIS No. 2459-08; DHS Docket No. USCIS-2008-0038]
RIN 1615-AB76


Commonwealth of the Northern Mariana Islands Transitional Worker 
Classification

AGENCY: U.S. Citizenship and Immigration Services, DHS.

ACTION: Interim rule; solicitation of comments.

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SUMMARY: The Department of Homeland Security (DHS) is creating a new, 
temporary, Commonwealth of the Northern Mariana Islands (CNMI)-only 
transitional worker classification (CW classification) in accordance 
with title VII of the Consolidated Natural Resources Act of 2008 
(CNRA). The transitional worker program is intended to provide for an 
orderly transition from the CNMI permit system to the U.S. federal 
immigration system under the Immigration and Nationality Act (INA or 
Act). A CW transitional worker is an alien worker who is ineligible for 
another classification under the INA and who performs services or labor 
for an employer in the CNMI. The CNRA imposes a five-year transition 
period before the INA requirements become fully applicable in the CNMI. 
The new CW classification will be in effect for the duration of that 
transition period, unless extended by the Secretary of Labor. The rule 
also establishes employment authorization incident to CW status.

DATES: Effective date: This rule will be effective on November 27, 
2009.
    Implementation date: Beginning at 12:01 a.m. (CNMI local time) on 
November 28, 2009, U.S. Citizenship and Immigration Services will begin 
operation of this program and required compliance with this interim 
rule will begin. The existing CNMI permit program will be in effect 
through November 27, 2009.

[[Page 55095]]

    Comment date: Written comments must be submitted on or before 
November 27, 2009.
    Written comments on the Paperwork Reduction Act section of this 
rule must be submitted on or before December 28, 2009.

ADDRESSES: You may submit comments, identified by DHS Docket No. USCIS-
2008-0038 by one of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
     E-mail: You may submit comments directly to USCIS by e-
mail at rfs.regs@dhs.gov. Include DHS Docket No. USCIS-2008-0038 in the 
subject line of the message.
     Mail: Chief, Regulatory Products Division, U.S. 
Citizenship and Immigration Services, Department of Homeland Security, 
111 Massachusetts Avenue, NW., Suite 3008, Washington, DC 20529-2210. 
To ensure proper handling, please reference DHS Docket No. USCIS-2008-
0038 on your correspondence. This mailing address may be used for 
paper, disk, or CD-ROM submissions.
     Hand Delivery/Courier: U.S. Citizenship and Immigration 
Services, Department of Homeland Security, 111 Massachusetts Avenue, 
NW., Suite 3008, Washington, DC 20529-2210. Contact Telephone Number is 
(202) 272-8377.

FOR FURTHER INFORMATION CONTACT: Paola Rodriguez Hale, U.S. Citizenship 
and Immigration Services, Department of Homeland Security, 20 
Massachusetts Avenue, NW., 2nd Floor, Washington, DC 20529-2060 
telephone (202) 272-1505.

SUPPLEMENTARY INFORMATION:

I. Public Participation

    Interested persons are invited to participate in this rulemaking by 
submitting written data, views, or arguments on all aspects of this 
rule. DHS also invites comments that relate to the economic or 
federalism effects that might result from this rule. Comments that will 
provide the most assistance to DHS will reference a specific portion of 
the rule, explain the reason for any recommended change, and include 
data, information, or authority that support such recommended change.
    Instructions: All submissions received must include the agency name 
and DHS Docket No. USCIS-2008-0038. All comments received will be 
posted without change to https://www.regulations.gov, including any 
personal information provided.
    Docket: For access to the docket to read background documents or 
comments received go to https://www.regulations.gov. Submitted comments 
may also be inspected at the Regulatory Products Division, U.S. 
Citizenship and Immigration Services, Department of Homeland Security, 
111 Massachusetts Avenue, N.W., Suite 3008, Washington, DC 20529-2210.

II. Background

    The Commonwealth of the Northern Mariana Islands (CNMI) is a U.S. 
territory located in the Western Pacific that has been subject to most 
U.S. laws for many years. The CNMI has administered its own immigration 
system under the terms of the 1976 Covenant with the United States. See 
A Joint Resolution to Approve the Covenant To Establish a Commonwealth 
of the Northern Mariana Islands in Political Union with the United 
States of America (Covenant Act), Public Law 94-241, sec. 1, 90 Stat. 
263, 48 U.S.C. 1801 note (1976). On May 8, 2008, former President Bush 
signed into law the Consolidated Natural Resources Act of 2008 (CNRA). 
See Public Law 110-229, Title VII, 122 Stat. 754, 853 (2008). Title VII 
of the CNRA extends U.S. immigration laws to the CNMI. The intent of 
Congress in passing this legislation is to ensure effective border 
controls and properly address national security and homeland security 
concerns by extending U.S. immigration law to the CNMI. See Section 
701(a) of Public Law 110-229. Title VII of the CNRA includes provisions 
to phase-out the CNMI's nonresident contract worker program and phase 
in the U.S. federal immigration system in a manner that minimizes 
adverse economic and fiscal effects and maximizes the CNMI's potential 
for future economic and business growth. Id. (b). Congress also intends 
to provide the CNMI with as much flexibility as possible to maintain 
existing businesses and other revenue sources and develop new economic 
opportunities. Id.
    Section 702 of the CNRA was scheduled to become effective 
approximately one year after the date of enactment, subject to certain 
transition provisions unique to the CNMI. On March 31, 2009, DHS 
announced that the Secretary of Homeland Security, in her discretion 
under the CNRA, had extended the effective date of the transition 
program from June 1, 2009 (the first day of the first full month 
commencing one year from the date of enactment of the CNRA) to November 
28, 2009. The transition period concludes on December 31, 2014.
    Since 1978, the CNMI has admitted a substantial number of foreign 
workers through an immigration system that provides a permit program 
for foreigners entering the CNMI, such as visitors, investors, and 
workers. Foreign workers under this program constitute a majority of 
the CNMI labor force. Such workers outnumber U.S. citizens and other 
local residents in most industries central to the CNMI's economy. The 
transitional worker program implemented under this rule is intended to 
provide for an orderly transition for those workers from the CNMI 
permit system to the U.S. federal immigration system under the INA, and 
to mitigate potential harm to the CNMI economy as employers adjust 
their hiring practices and as foreign workers obtain U.S. immigrant or 
nonimmigrant status.
    Section 702(a) of the CNRA mandates that, during this transition 
period, the Secretary of Homeland Security must ``establish, 
administer, and enforce a system for allocating and determining the 
number, terms, and conditions of permits\1\ to be issued to prospective 
employers'' for the transitional workers and investors.\2\ The statute 
provides that this system is for nonimmigrant workers ``who would not 
otherwise be eligible for admission'' under applicable provisions of 
the INA. Therefore, as discussed in section III below, nonimmigrant 
workers seeking CW status must demonstrate that they are ineligible for 
admission under another INA classification, such as an H-1B, H-2A or P-
1 nonimmigrant. See 8 U.S.C. 1101.
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    \1\ The CNRA refers to a system of permits. Note that we have 
retained this language when referencing the statute. However, in 
this context, the use of the term ``permit'' is synonymous with CW 
status and the latter term is used more extensively in this 
discussion.
    \2\ DHS will promulgate separate regulations addressing 
transitional measures for nonimmigrant investors in the CNMI.
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    Section 702(a) of the CNRA further states that transitional workers 
may apply to USCIS during the transition period for a change of status 
to another nonimmigrant classification or to adjust status to an 
immigrant classification in accordance with the INA. Following the end 
of the transition period, the transitional worker program will cease to 
exist and transitional workers must then adjust or change status to an 
immigrant or another nonimmigrant status under the INA if they want to 
remain legally in the CNMI. Otherwise, such transitional workers must 
depart the CNMI or they will become subject to removal.

[[Page 55096]]

    The rule implementing this transitional worker program is explained 
below.

III. Regulation Changes

    This rule amends DHS regulations at 8 CFR 214.2 by providing a new 
paragraph (w). This new paragraph creates a new CNMI-only transitional 
worker classification for the duration of the transition period. 
Transitional workers will be classified using an admission code of CW-1 
for principal transitional workers and CW-2 for dependents. Aliens who 
were previously admitted to the CNMI under the CNMI nonresident worker 
permit programs may be granted CW status by USCIS. To minimize adverse 
impact on the CNMI economy, the CW classification allows workers, who 
would not be eligible for any other lawful status under the INA, to 
enter or remain in the CNMI as a transitional worker during the 
transition period.\3\ In this rule, DHS promulgates provisions 
governing CW-1 status in the section of the Code of Federal Regulations 
governing other INA nonimmigrant categories, and has incorporated 
standard elements from current nonimmigrant categories to maintain 
regulatory consistency, particularly with respect to petition 
processing procedures. This rule establishes eligibility criteria, 
limitations and parameters for the CW-1 nonimmigrant program as 
required by or consistent with an interpretation of the applicable 
provisions of section 702(a) of the CNRA, and prescribes procedural 
requirements for petitioners to follow. The specific areas that this 
rule implements and the rationale used by DHS are as follows:
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    \3\ On March 2, 2009, USCIS opened an Application Support Center 
(ASC) in Saipan that offers extended services, including the ability 
for individuals in the CNMI to schedule an INFOPASS appointment to 
speak with an immigration officer regarding non-immigrant or 
immigrant worker eligibility requirements under the INA. Additional 
information regarding such eligibility requirements can be accessed 
at https://www.uscis.gov.
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A. CNMI-Only Transitional Workers

    As defined by the statute, a CNMI-only transitional worker is an 
alien worker who is ineligible for another classification under the INA 
during the transition period. Section 6(d)(1) or (2) of Public Law 94-
241, as added by sec. 702(a) of Public Law 110-229. This rule makes 
aliens eligible for CW-1 status only if they are ineligible for 
nonimmigrant classification based upon employment activities described 
in section 101(a)(15) of the INA. Such nonimmigrant classifications may 
include, but are not limited to, a specialty occupation described in 
section 214(i) of the Act, temporary or seasonal agricultural work for 
which H-2A classification is available, and other temporary or seasonal 
employment for which H-2B classification is available. See 8 CFR 
214.2(w)(2)(vi). DHS believes that this will help ensure that those who 
are eligible for employment-related nonimmigrant categories under the 
INA make use of those categories, especially the H categories, which 
are uncapped for employment in the CNMI during the transition period. 
As section 702(a) of the CNRA expressly allows transitional workers to 
change or adjust status under the INA, this provision is not meant to 
rigidly bar anyone admissible under the INA in any immigrant or other 
nonimmigrant category from obtaining CW-1 status. Section 6(d)(1) of 
Public Law 94-241, as added by sec. 702(a) of Public Law 110-229. DHS 
envisions scenarios wherein certain professionals may not initially be 
eligible for H-1B status due to Federal licensing or other 
requirements, and believes that it is an appropriate use of the 
transitional worker program to allow such aliens time during the 
transition period to seek to satisfy such requirements. This rule does 
not exempt such aliens in occupations requiring licensure from 
complying with existing local licensure requirements. See 8 CFR 
214.2(w)(6)(iii).
    Section 702(a) further states that DHS shall set the conditions for 
admission to the CNMI for nonimmigrant workers. Section 6(d)(3) of 
Public Law 94-241, as added by sec. 702(a) of Public Law 110-229. DHS 
is providing in this rule that, subject to numerical limitations, 
aliens may be classified as CW-1 nonimmigrants if, during the 
transition period, the alien: (1) Will enter or remain in the CNMI for 
the purpose of employment during the transition period in an 
occupational category designated by the Secretary as requiring alien 
workers to supplement the resident workforce; (2) has a petition 
submitted on his or her behalf by an employer; (3) is not present in 
the United States, other than the CNMI; (4) if present in the CNMI, is 
lawfully present in the CNMI; and (5) is not inadmissible to the United 
States as a nonimmigrant, except for an alien present in the CNMI who 
is described in section 212(a)(7)(B)(i)(II) of the Act (not in 
possession of valid nonimmigrant visa). See 8 CFR 214.2(w)(2). In order 
to obtain CW status, the worker must either be lawfully present in the 
CNMI, or must be coming from abroad to the CNMI with a CW-1 visa 
properly issued by the U.S. Department of State. See 8 CFR 
214.2(w)(2)(i).
    DHS has determined that requiring lawful status in the CNMI as a 
prerequisite for CW-1 eligibility is the most efficient means to begin 
the congressionally-mandated drawdown of transitional workers to zero 
by the end of the transition period. Furthermore, to allow workers 
without lawful status in the CNMI to obtain CW-1 status would encourage 
noncompliance with CNMI immigration law during the period before the 
transition program effective date by removing the incentive for such 
workers with lawful status to maintain or reacquire such lawful status 
under CNMI law prior to the transition. In order to administer this 
program in a manner consistent with other employment-based INA 
nonimmigrant classifications, this rule requires that employers 
petition for aliens to obtain status. Additionally, this rule requires 
that aliens cannot be present in the United States other than the CNMI, 
which DHS believes is consistent with the statutorily-mandated 
geographic restriction of transitional workers to the CNMI. See Section 
6(d)(3) of Public Law 94-241, as added by sec. 702(a) of Public Law 
110-229;
    8 CFR 214.2(w)(2). The transition program effective date is 
November 28, 2009. See Section 6(a)(1) and (3) of Public Law 94-241, as 
added by sec. 702(a) of Public Law 110-229. The CW classification will 
cease to exist at the end of the transition period, meaning that 
existing grants of CW status will automatically terminate, and no new 
grants of CW status will be made. See 8 CFR 214.2(w)(23). Because of 
the statutory restrictions on eligibility for the CW classification and 
to avoid the need to seek to change status or depart the CNMI at the 
end of the transition period, employers of nonresident workers should 
seek classification under another INA classification for which the 
workers may be eligible instead of petitioning for CW status. See 
Section 6(d)(2) of Public Law 94-241, as added by sec. 702(a) of Public 
Law 110-229.

B. Employers

    As required under section 702(a) of the CNRA, DHS will not consider 
a business legitimate if it engages directly or indirectly in 
prostitution, trafficking in minors, or any other activity that is 
illegal under Federal or local CNMI law. Section 6(d)(5)(A) of Public 
Law 94-241, as added by section 702(a) of Public Law 110-229.
    The CNRA provides that the determination of whether a business is 
legitimate will be made by the Secretary

[[Page 55097]]

of Homeland Security in the Secretary's sole discretion. Section 
6(d)(5)(A) of Public Law 94-241, as added by section 702(a) of Public 
Law 110-229. This rule requires that eligible employers of CW 
transitional workers be engaged in legitimate business, and separates 
the definition of legitimate business into its component parts--
legitimate and business. Accordingly, this rule defines legitimate 
business to mean ``a real, active, and operating commercial or 
entrepreneurial undertaking which produces services or goods for 
profit, or is a governmental, charitable or other validly recognized 
nonprofit entity.'' See 8 CFR 214.2(w)(1)(v). The business must meet 
applicable legal requirements for doing business in the CNMI and will 
not be considered legitimate if it engages directly or indirectly in 
prostitution, trafficking in minors, or any other activity that is 
illegal under Federal or CNMI law. Id.
    In addition to requiring eligible employers to be engaged in 
legitimate business, this rule further establishes that eligible 
employers must consider all available U.S. workers for positions being 
filled by CW-1 workers; offer terms and conditions of employment which 
are consistent with the nature of the occupation, activity, and 
industry in the CNMI; and comply with all Federal and CNMI requirements 
relating to employment; including, but not limited to, 
nondiscrimination, occupational safety, and minimum wage requirements. 
See 8 CFR 214.2(w)(4). DHS created these parameters for eligible 
employers to comply with congressional intent that the CW category 
should ``promote the maximum use of, and * * * prevent adverse effects 
on wages and working conditions of, workers authorized to be employed 
in the United States.'' Section 6(d)(2) of Public Law 94-241, as added 
by sec. 702(a) of Public Law 110-229.
    Congress has directed that DHS allow CW workers to transfer among 
employers during the transition period. Section 6(d)(4) of Public Law 
94-241, as added by section 702(a) of Public Law 110-229. This rule 
establishes that an employer may request, and USCIS will permit, a 
transfer within an alien's occupational category or another 
occupational category that the Secretary of Homeland Security has 
determined requires alien workers. See 8 CFR 214.2(w)(7).
    The CNMI currently classifies occupations by reference to the nine 
occupational categories listed under the U.S. Department of Labor's 
Dictionary of Occupational Titles (DOT). See 3 N. Mar. I. Code section 
4412(k). This rule incorporates all occupational categories that are 
currently being utilized in the CNMI. See 8 CFR 214.2(w)(1)(viii).
    The occupational categories in which nonresident workers may be 
needed include:
     Professional, technical, or management occupation;
     Clerical and sales occupation;
     Service occupation;
     Agricultural, fisheries, forestry, and related occupation;
     Processing occupation;
     Machine trade occupation;
     Benchwork occupation;
     Structural work occupation; and
     Miscellaneous occupation. Id.
    The DOT provides examples of these occupations, including 
processing and benchwork occupations. See Employment and Training 
Administration, U. S. Department of Labor, Dictionary of Occupational 
Titles (4th ed. 1991) available at https://www.oalj.dol.gov/libdot.htm.
    As the general meaning of processing and benchwork occupations is 
not clear from the title alone, additional explanation of these two 
particular occupational categories is provided. Processing occupations 
include occupations concerned with refining, mixing, compounding, 
chemically treating, heat treating, or similarly working with materials 
and products. Id. The DOT defines benchwork occupations as those 
concerned with the use of hand tools and bench machines to fit, grind, 
carve, mold, paint, sew, assemble, inspect, repair, and similarly work 
relatively small objects and materials, such as jewelry, phonographs, 
light bulbs, musical instruments, tires, footwear, pottery, and 
garments. Id. The work is usually performed at a set position in a 
mill, plant, or shop, at a bench, worktable, or conveyor. Id. All 
occupations must be for a legitimate business not engaging directly or 
indirectly in prostitution, trafficking in minors, or any other 
activity that is illegal under Federal or CNMI law.
    DHS notes that household domestic workers are eligible for CW-1. 
However, DHS also notes that the definition of ``legitimate business'' 
may have a significant impact on domestic workers directly employed by 
individuals, as ``business'' is defined to mean ``a real, active, and 
operating commercial or entrepreneurial undertaking that produces goods 
or services for profit.'' See 8 CFR 214.2(w)(1)(v). Individual 
households employing individual domestic workers would not appear to be 
a commercial or entrepreneurial undertaking, nor would the individual 
household be producing goods or services for profit. Therefore, it is 
anticipated that qualifying domestic workers likely would be employed 
through a ``legitimate business'' for placement in individual 
households.
    The rule does not exclude any specific type of employment from the 
occupational categories permissible for CW-1 workers. However, there 
are three occupational categories--dancing, domestic workers, and 
hospitality workers--about which DHS has particular concern. DHS notes 
that women seeking employment as exotic dancers in the CNMI have been 
particularly prone to sexual exploitation and other abuse. See, e.g., 
Senate Hearing 110-50, Conditions in the Commonwealth of the Northern 
Mariana Islands (Feb. 8, 2007) (testimony of Lauri Bennett Ogumoro and 
Sister Mary Stella Mangona). In a discussion between DHS officials and 
advocates for exploited women in Saipan in July 2008, the advocates 
identified so-called ``cultural dancing'' as a common front occupation 
used to import women into the CNMI for the purposes of prostitution, in 
addition to the category of domestic work. Additionally, waitressing 
and other club and restaurant hospitality work also are known paths for 
exploitation and abuse. See, e.g., United States v. Liu, 538 F.3d 1078 
(9th Cir. 2008). DHS is considering excluding some or all of these 
occupations from eligibility for CW status.
    DHS also is concerned about the economic effects of blanket 
exclusions of all dancers, domestic workers or hospitality service 
workers. DHS emphasizes that, regardless of the occupational category, 
all employers must be engaged in legitimate business, which is defined 
to exclude employers that engage directly or indirectly in 
prostitution, trafficking in minors, or any other activity that is 
illegal under Federal or CNMI law. DHS invites comments on the 
potential effect of excluding dancing from the list of eligible 
occupations. DHS also invites comments on whether DHS should exclude 
occupations, such as the hospitality industry, domestic service, or 
other occupations, to combat human trafficking and sexual exploitation.

C. The CNMI-Only Transitional Worker Allocation System

    Section 702(a) of the CNRA mandates that the Secretary of Homeland 
Security establish, administer, and enforce a system for allocating and 
determining the number, terms, and conditions of permits to be issued 
to prospective employers for the transitional workers. Section 6(d) of 
Public Law 94-241, as added by sec. 702(a) of Public Law 110-229. The 
Secretary may base the system

[[Page 55098]]

on any reasonable method and criteria determined by the Secretary to 
promote the maximum use, and to prevent adverse effects on wages and 
working conditions, of U.S. citizens, lawful permanent residents, and 
lawfully admissible freely-associated state citizen labor. Id. The 
system must also provide for a reduction in the allocation of permits 
for such workers on an annual basis to zero during a period not to 
extend beyond December 31, 2014, unless extended by the Secretary of 
Labor. Id. This rule does not, for the reasons explained below, impose 
a specific annual reduction in allocation of permits, but does 
establish the numerical limitation to be utilized initially and its 
underlying methodologies for setting the numerical limitation 
throughout the transition period.
    Under section 702(a) of the CNRA, between May 8, 2008 and the 
transition program effective date, the CNMI government must not 
increase the total number of alien workers present in the CNMI. Section 
6(i)(1) of Public Law 94-241, as added by sec. 702(a) of Public Law 
110-229. Thus, the DHS-administered system, in its initial phase, will 
be based on the estimate from the CNMI government of the maximum number 
of nonresident workers in the CNMI as of May 8, 2008. That number is 
22,417.\4\ This rule defines the numerical limitation as the number of 
persons who may be granted CW-1 status and sets that number for the 
initial year at no higher than 22,417. See 8 CFR 214.2(w)(1)(vii). DHS 
will assess and reduce the number of grants of CW-1 status annually 
based, in part, on the economic conditions in the CNMI, consultation 
with the government of the CNMI and other Federal government agencies, 
and employment opportunities available for the resident workforce. Id. 
Grants of CW-1 status will be allocated based upon the availability of 
CW-1 permits and a showing of eligibility based upon the requirements 
outlined in this rule.
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    \4\ See Letter from Benigno Fitial, Governor of the Commonwealth 
of the Northern Mariana Islands, to Richard C. Barth, Assistant 
Secretary for Policy Development, and Stewart A. Baker, Assistant 
Secretary for Policy, Office of Policy, Department of Homeland 
Security (July 18, 2008) (Fitial letter) (available at 
www.regulations.gov under DHS Docket No. USCIS-2008-0038).
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    Specifically, 22,417 is a composite figure that includes aliens 
eligible for other INA categories, aliens with employment authorization 
for the first two years of the transition period under the 
``grandfather clause'' provided by section 6(e)(2) of Public Law 94-
241, as added by section 702(a) of Title VII of the CNRA, and CW-1 
eligible aliens. Thus, while 22,417 could theoretically reflect the 
total number of CW-1 eligible aliens, setting 22,417 as the total 
number of CW-1 workers would artificially inflate the CW-1 eligible 
population by presuming that there are zero ``grandfathered'' or other 
INA workers. Therefore, this rule defines ``numerical limitation'' to 
be the maximum number of persons who may be granted CW-1 status, but 
for the reasons explained above, it is not expected that there will 
actually be 22,417 CW-1 eligible aliens to whom CW-1 status will be 
accorded. Id. DHS emphasizes that this provision is not intended to, 
and will not have the effect of, providing any cap on the access of 
CNMI employers to H and other nonimmigrant workers in the INA 
categories.
    The Governor of the CNMI has requested that DHS not reduce the 
number of foreign workers available to CNMI employers in the first two 
years of the transition program beyond the cap currently provided by 
section 6(i)(1) of the Covenant Act.\5\ As required by section 702(a) 
of the CNRA, DHS considered the request of the Governor of the CNMI in 
creating this rule. However, in considering this request, DHS was also 
bound by the statutory language mandating a reduction of numbers on an 
annual basis. Section 6(d)(2) of Public Law 94-241, as added by sec. 
702(a) of Public Law 110-229.
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    \5\ See Fitial letter.
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    In light of these interests, this rule sets the maximum number of 
persons who may be granted CW-1 status for the first year of the 
transition period at 22,417. See 8 CFR 214.2(w)(1)(vii)(A). For the 
subsequent years of the transition period, the numerical limitation 
will be a number less than 22,417, as determined at the discretion of 
the Secretary. USCIS will publish the determination as a notice in the 
Federal Register. See 8 CFR 214.2(w)(1)(vii)(B). DHS believes that, 
given the lack of specific data available both on the foreign worker 
population, particularly with respect to eligibility for other INA 
categories and the number of ``grandfathered'' workers during the first 
two years of the transition period, as well as the uncertainty of 
future economic conditions in the CNMI, determining the CW-1 numerical 
limitation in this manner is prudent.

D. Petitioning Procedures

    This rule requires employers who seek to employ a CW-1 nonimmigrant 
worker to file a petition with USCIS requesting such status. See 8 CFR 
214.2(w)(1)(ix). USCIS has determined that its Form I-129, Petition for 
a Nonimmigrant Worker, contains most of the information needed by USCIS 
to determine that a particular employer and its current and prospective 
employees are eligible as an employer and for CW-1 status, 
respectively. However, because the CW program is a temporary program, 
USCIS has decided to develop and use a separate Form I-129 called the 
I-129CW (``Petition for a Nonimmigrant Worker in the CNMI''), for CW 
petitions and will provide separate instructions for the application 
form for requesting CW transitional workers. The petition must be 
prepared in accordance with the form instructions and accompanied by 
the appropriate fee or a fee waiver request. USCIS will charge the 
current fee of $320 for Form I-129 for the Form I-129CW because the 
adjudicative burden is expected to be identical. In addition to the 
petitioning fee required for submission of a Form I-129, section 702(a) 
of the CNRA requires employers to pay a supplemental CNMI education 
funding fee of $150 per beneficiary per year. Section 6(b)(6) of Public 
Law 94-241, as added by sec. 702(a) of Public Law 110-229. The 
supplementary CNMI education funding fee is mandatory and cannot be 
waived.
    While fee waivers are not generally available in employment-based 
cases, due to the unique circumstances present in the CNMI, USCIS may 
waive the fee for the I-129CW in certain circumstances if the 
petitioner is able to show inability to pay. See 8 CFR 103.7(c)(5)(i). 
Due to the inherent inconsistency between sponsoring an alien for 
employment and being unable to pay the requisite fee for that 
sponsorship, USCIS expects that the situation when an employer would 
adequately demonstrate an inability to pay will be extremely limited. 
An estimate of the information collection requirements and a request 
for comments are included in the Paperwork Reduction Act section of 
this rule. An analysis of the fee impacts of this rule are included in 
the summary of the costs and benefits also provided below.
    Form I-129CW will require an employer to provide the full name of 
the beneficiaries, as well as documentation or information that is 
sufficient to demonstrate that the worker- beneficiaries on the 
petition are eligible for CW-1 status based on the criteria in this 
rule. This rule requires that the petitioner submit an attestation 
regarding the eligibility of both the employer and the beneficiary. See 
8 CFR 214.2(w)(6)(ii). This rule requires that

[[Page 55099]]

such an attestation certify that the petitioner meets the definition of 
an eligible employer, that the beneficiary is qualified for the 
position, and, if the beneficiary is present in the CNMI, that the 
beneficiary is in lawful CNMI status. Id. Finally, the rule requires a 
petitioner to attest that the position is nontemporary or nonseasonal, 
is in an occupational category as designated by the Secretary, and that 
qualified United States workers are not available to fill the position. 
Id. DHS believes that having an attestation is necessary to ensure 
eligibility of both the employer and of the beneficiary, and will 
obviate the need to affirmatively determine whether the applicant is 
eligible for status under every other conceivable INA category. 
Additionally, certain professions may require licensure in order to 
fully perform the duties of the occupation. In order to allow full and 
competent performance of such duties, this rule requires the petitioner 
to submit evidence of the beneficiary's licensure if the occupation 
requires a Commonwealth or local license. See 8 CFR 214.2(w)(6)(iii).
    The rule allows a beneficiary to request, and obtain, a transfer to 
a new employer within an alien's occupational category or to another 
occupational category that the Secretary of Homeland Security has 
determined requires alien workers. See 8 CFR 214.2(w)(7). However, the 
rule requires that a petition for a change of employer must be filed by 
the new employer and an extension of the alien's stay must be requested 
if necessary for the validity period of the petition. Id. An alien who 
makes an unauthorized change of employment to a new employer has failed 
to maintain his or her status. Id. Further, the rule requires an 
employer to submit a new or amended petition for any material (i.e.--
substantive) change in the terms and conditions of employment. See 8 
CFR 214.2(w)(8). DHS believes that such requirements are consistent 
with other nonimmigrant categories allowing change of employers and 
ensures that aliens are properly complying with the terms of their 
admission in CW status while not making transfer between employers 
impermissible.
    The rule also allows petitioners to file for multiple 
beneficiaries. See 8 CFR 214.2(w)(9). The rule permits a petitioning 
employer to include more than one beneficiary in a CW-1 petition if the 
beneficiaries will be working in the same occupational category, for 
the same period of time, and in the same location. Id. However, the 
rule does not allow employers to petition for unnamed beneficiaries. At 
the time of filing, the petition must include the name of each intended 
beneficiary and other required information, as indicated in the form 
instructions. See 8 CFR 214.2(w)(10). DHS believes that allowing 
multiple beneficiaries will ease the potential burden on petitioners 
associated with submitting multiple individual petitions for multiple 
beneficiaries. Requiring that such beneficiaries be named will allow 
USCIS to verify, when necessary, prior lawful status of the 
beneficiaries in the CNMI, as this rule requires.
    The rule includes safeguards for the beneficiary in case of early 
termination. See 8 CFR 214.2(w)(11). The rule requires that the 
petitioning employer pay the reasonable cost of return transportation 
of the alien to the alien's last place of foreign residence if the 
alien is dismissed from employment for any reason by the employer 
before the end of the period of authorized admission. Id. This 
requirement is consistent with current employment practices in the 
CNMI. This requirement also protects the Federal government from the 
potential costs of removing indigent aliens from the CNMI and is within 
DHS's discretion to impose requirements for temporary transitional 
worker status under title VII of the CNRA and more generally under 
section 214 of the INA.
    The rule states that, after consideration of all the evidence 
submitted, USCIS will issue an approval of the petition on a Form I-
797, Notice of Action, or in another form as USCIS may prescribe. See 8 
CFR 214.2(w)(12). The rule requires that the approval notice include 
the classification and name of the beneficiary or beneficiaries and the 
petition's period of validity, and that a petition for more than one 
beneficiary may be approved in whole or in part. See 8 CFR 
214.2(w)(12)(i). However, the rule requires that petitioners will not 
be able to file for a beneficiary earlier than six months before the 
date of actual need for the beneficiary's services. See 8 CFR 
214.2(w)(12)(ii). The rule further provides that, although USCIS may in 
its discretion permit petitions to be filed prior to November 28, 2009, 
USCIS will not grant CW-1 status or authorize the admission of any 
alien to the CNMI prior to such date. Id.
    The rule also states that although the beneficiary may be admitted 
to the CNMI up to ten days before the validity period begins and may 
remain no later than ten days after the validity period ends, the 
beneficiary will only be able to work during the validity period of the 
petition. See 8 CFR 214.2(w)(13). DHS believes that this validity 
period is consistent with other nonimmigrant categories and permits the 
necessary flexibility for travel and living arrangements to be made 
both before and after period of authorized employment. Finally, this 
rule requires that USCIS reject a petition once the numerical 
limitation of 22,417 has been reached, but that in such cases the 
petition and accompanying fee will be returned along with notice that 
the numerical limitation has been reached. See 8 CFR 214.2(w)(20). DHS 
believes that this will allow for reduction in CW workers in accordance 
with the numerical limitation. An alien in the CNMI whose CW status 
terminates, or who is not granted CW status at all, is not lawfully 
present and is subject to removal if he or she does not have another 
status under U.S. immigration law or other lawful basis to remain.

E. Obtaining CW Status

    Once the Form I-129CW petition is approved, the beneficiary will 
receive CW-1 status, and eligible family members may apply for CW-2 
status for the spouse and dependents, as appropriate. See 8 CFR 
214.2(w)(3). Dependents are spouses and minor children, as discussed 
more fully below in part G. Aliens who are abroad will need to apply 
for a CW-1 or CW-2 visa at a U.S. consulate. Aliens present in the CNMI 
must apply for status using Form I-129CW, and shall be required to 
provide biometrics along with an initial application for CW-1 or CW-2 
status. See 8 CFR 214.2(w)(5) and (w)(15). When applicants apply 
overseas, USCIS will not require that the applicants provide biometrics 
along with Form I-129CW, although the Department of State may require 
biometrics at a U.S. consulate or embassy abroad as part of its routine 
visa processing procedures. Aliens present in the CNMI will not have 
previously supplied biometric information to the Federal government; 
therefore, because the federal government will not have conducted the 
attendant security checks on those aliens, USCIS will require aliens in 
the CNMI to provide biometrics. The applicable biometrics fee is $80. A 
fee waiver is available based upon a showing of inability to pay for 
the Form I-129CW and/or biometrics fees. See 8 CFR 103.7(b)(1); 8 CFR 
103.7(c)(5)(i). Status will be evidenced using Form I-94 or other 
appropriate documents.

F. Lawful Presence and Travel

    The transitional worker program will be available to two groups of 
aliens in general: (1) Those who are lawfully present in the CNMI; and 
(2) those who are abroad. The rule defines lawful

[[Page 55100]]

presence as status under the CNMI immigration laws before the 
transition program effective date, or status under the ``grandfather'' 
provision of the CNRA or U.S. immigration laws after the transition 
program effective date. See Section 6(e)(1) or (2) of Public Law 94-
241, as added by sec. 702(a) of Title VII of the CNRA; 8 CFR 
214.2(w)(1)(iv).
    Short term visitors for business or pleasure, including individuals 
admitted with a Visitor Entry Permit (VEP) under CNMI law, will not be 
eligible to obtain CW classification, as such individuals are not part 
of the foreign workforce that is the subject of this rule. Once status 
is obtained, the CW-1 or CW-2 nonimmigrant may leave the CNMI and 
return, but must have the appropriate visa for readmission. See 8 CFR 
214.2(w)(22)(ii). Such a visa requirement at the time of application 
for admission is consistent with current INA requirements. See INA sec. 
212(a)(7)(B), 8 U.S.C. 1182(a)(7)(B). CW classification is valid only 
in the CNMI, and provides no basis for travel to any other part of the 
United States. See 8 CFR 214.2(w)(22)(i). An attempt to travel to any 
other part of the United States without documentation authorizing 
admission in another classification is a violation of the CW status 
that will render the alien removable. Id.

G. Spouse and Minor Children of CW Transitional Worker

    Section 702(a) of the CNRA, provides that spouses and minor 
children of an alien in CW-1 nonimmigrant status may be authorized for 
admission into the CNMI as accompanying or following to join the 
principal CW worker, and this rule implements that authority. See 8 CFR 
214.2(w)(3). The rule adopts the INA's definition of ``child'' for 
immigration purposes other than naturalization in section 101(b), 
adding a requirement that the child be under eighteen years of age 
since the statute refers to ``minor children'' rather than 
``children.'' See Section 6(d)(6) of Public Law 94-241, as added by 
sec. 702(a) of Public Law 110-229; 8 CFR 214.2(w)(1)(vi). Generally, 
work authorization is not permitted for accompanying spouses and 
children of other classes of nonimmigrants as a result of their 
derivative status, and this rule similarly does not provide it. See 8 
CFR 214.2(w)(22)(iii).

H. Consideration of Petitions and Applications

    A decision to grant or deny CW-1 or CW-2 status is discretionary 
and USCIS may deny petitions for failure to demonstrate eligibility or 
other good cause. Consistent with procedures for other nonimmigrant 
categories, petitioners may appeal denials of Form I-129CW to the USCIS 
Administrative Appeals Office on Form I-290B, as provided by 8 CFR 
103.7(b). Denials of Form I-539, Application to Change or Extend 
Nonimmigrant Status, are not appealable. See 8 CFR 214.2(w)(21).

I. Change or Adjustment of Status

    Section 702(a) of the CNRA allows workers in the CW classification 
to change to another nonimmigrant status or to adjust to lawful 
permanent resident status throughout the transition period, if 
eligible. Section 6(d)(1) of Public Law 94-241, as added by section 
702(a) of Public Law 110-229. The rule provides that an alien may 
legitimately be present in, or come to, the CNMI for a temporary period 
as a CW-1 or CW-2 nonimmigrant and, at the same time, lawfully seek to 
become a permanent resident of the United States provided the alien 
intends to depart voluntarily at the end of the alien's authorized 
nonimmigrant stay. See 8 CFR 214.2(w)(19). For purposes of qualifying 
for CW-1 or CW-2 classification, the alien is not required to maintain 
a residence abroad, and dual immigrant and nonimmigrant intent is 
allowed. See 8 CFR 214.2(w)(19).

J. Period of Admission and Extensions of Stay

    A CW transitional worker will be admitted for an initial period of 
one year. See 8 CFR 214.2(w)(16). The spouse and children accompanying 
or following to join a CW transitional worker will be admitted for the 
same period that the principal alien is in valid CW transitional worker 
status, or in the case of a minor child, until the age of 18. See 8 CFR 
214.2(w)(16). Additionally, USCIS will grant extensions of CW status in 
one-year increments until the end of the transition period. See 8 CFR 
214.2(w)(17). Extensions of stay are subject to the numerical 
limitation and section 702(a) of the CNRA further requires that the 
number of permits be reduced on an annual basis. See 8 CFR 
214.2(w)(1)(vii). A one-year validity period facilitates effective 
management of the number of permits issued at any given time. DHS 
welcomes comments on the CW-1 status validity period, its potential 
impacts on CNMI employers and foreign workers, and ways to mitigate 
these impacts while complying with the statute.

K. Post-Transition Period

    Unless extended by the Secretary of Labor, the CNMI-only 
transitional worker program will end on December 31, 2014. Section 
6(a)(2) of Public Law 94-241, as added by section 702(a) of Public Law 
110-229. After the end of the CNMI-only transitional worker program, 
the CW classification will cease to exist, as existing grants of status 
will automatically terminate and no new ones will be issued. See 8 CFR 
214.2(w)(23).

IV. Technical Changes

    This rule amends the current provisions of 8 CFR 214.2 by adding 
paragraph (w) CNMI-Only Transitional Worker classification. See 8 CFR 
214.2(w).

V. Regulatory Requirements

A. Administrative Procedure Act

    The Administrative Procedure Act (APA) provides that an agency may 
dispense with notice and comment rulemaking procedures when an agency, 
for ``good cause,'' finds that those procedures are ``impracticable, 
unnecessary, or contrary to the public interest.'' See 5 U.S.C. 
553(b)(B). For reasons discussed below, DHS finds that prepromulgation 
notice and comment for this rule would be impracticable, unnecessary, 
and contrary to the public interest.
    Although Congress provided DHS with twelve months (now eighteen 
months under the extended transition date) to conduct and conclude the 
rulemaking actions necessary to implement the requirements of the CNRA, 
this timeframe is a relatively short timeframe to conduct a thorough 
review of the CNMI's immigration system and develop the complex 
regulatory scheme necessary to ensure a smooth transition of the CNMI 
to the U.S. federal immigration system and thus avoid potential adverse 
impacts on the CNMI economy and aliens currently residing lawfully in 
the CNMI. Further, in developing these regulations, DHS required 
sufficient time to engage in the necessary consultations with the CNMI 
government, Departments of State and Interior and other required 
stakeholders.
    Under the APA, an agency is authorized to forego notice and comment 
in emergency situations, or where ``the delay created by the notice and 
comment requirements would result in serious damage to important 
interests.'' Woods Psychiatric Institute v. United States, 20 Cl. Ct. 
324, 333 (Cl. Ct. 1990) aff'd 925 F.2d 1454 (Fed. Cir. 1991); also 
National Fed'n of Fed. Employees v. National Treasury Employees Union, 
671 F.2d 607, 611 (D.C. Cir. 1982). ``[W]hen there is a lack of 
specific and immediate guidance

[[Page 55101]]

from the agency that would create confusion, economic harm, and 
disruption, not only to the participants of the program, who are forced 
to rely on antiquated standards, but would also extend to consumers in 
general, the good cause exception is a proper solution to ameliorate 
this expected harm.'' Woods, 20 Cl. Ct. at 333. Under the CNRA, the 
transition will begin on November 28, 2009, even if regulations to 
guide the CNMI are not yet in place. Thus, the failure to have an 
effective interim regulation in place by the beginning of the 
transition period would serve only to harm the CNMI and aliens residing 
in the CNMI following the transition. This would have an adverse impact 
on the CNMI economy in direct contrast to congressional intent under 
the CNRA and would be contrary to an important public interest.
    Although DHS finds that good cause exists under 5 U.S.C. 553(b) to 
issue this rule as an interim rule, DHS nevertheless invites written 
comments on this interim rule and will consider those comments in the 
development of a final rule in this action.

B. Executive Order 12866

    This rulemaking is not considered ``economically significant'' 
under Executive Order 12866 because it will not result in an annual 
effect on the economy of $100 million or more in any one year. However, 
because this rule raises novel policy issues, it is considered 
significant and has been reviewed by the Office of Management and 
Budget (OMB) under this Order. A summary of the economic impacts of 
this rule are presented below. For further details regarding this 
analysis, please refer to the complete Regulatory Assessment that has 
been placed in the public docket for this rulemaking.
    In this analysis, we estimate the incremental costs to society, 
including both the CNMI and the United States, of the rule. Given the 
requisite reduction in the number of grants of CW status (to zero) by 
the end of the transition period, the most significant economic impact 
of the rule may result from a decrease in available foreign labor. 
However, we cannot reliably measure this impact for two primary 
reasons: (1) DHS has yet to develop a schedule for allocating and 
reducing the number of grants of CW status, and (2) economic models 
with which to estimate this impact are largely absent or cannot be 
developed, given the general lack of CNMI economic and production data 
and the changing conditions of the CNMI economy (due to changes in the 
two primary industries in the CNMI: Garment manufacturing and tourism, 
newly imposed minimum wage requirements, and the CNMI government's 
fiscal condition). Furthermore, whether the U.S. Department of Labor 
(DOL) will exercise its authority to extend the transition period 
beyond 2014 is unknown at this time.
    DHS notes that despite these limitations and for purposes of 
illustration only, the U.S. Government Accountability Office (GAO) in a 
recent report has simulated a range of possible impacts on the CNMI 
economy (i.e., Gross Domestic Product) given varying rates of reduction 
in the number of visas for foreign workers and decisions made by DOL 
with respect to extending the transition period (see GAO-08-791, August 
2008). We do not make any attempt to recreate, modify, or substantiate 
the GAO analysis in this report.
    As a result, we have calculated the estimable incremental direct 
costs resulting from changes in the fees imposed for the visas required 
by the rule. Because of the data limitations discussed above, we 
qualitatively discuss the incremental effect of these costs on overall 
production and government revenue in the CNMI.
    The analysis focuses solely on impacts likely to be incurred during 
the transition period beginning November 28, 2009, and ending December 
31, 2014. There are four key assumptions that shape the framework and 
methodology of our cost analysis:
    1. The number of grants of CW status available during the 
transition period ending December 31, 2014, will remain constant at 
22,417 visas per year. We make this assumption because (1) DHS and 
USCIS have not yet established a schedule for allocating and reducing 
the number of grants of CW status; and (2) DOL has not yet decided 
whether or not to extend the transition period beyond 2014. We again 
note that GAO report 08-791 contains more information regarding 
possible impacts on CNMI GDP given varying rates of reduction in the 
number of CW visas for foreign workers and DOL with respect to 
extending the transition period.
    2. The starting cap of 22,417 grants of CW status is sufficient to 
accommodate the number of foreign workers likely to require such status 
in 2009. We estimate that approximately 14,543 foreign workers (13,543 
in-status and 1,000 out-of-status who may be brought into lawful status 
under CNMI law) will be granted CW status in 2009. This number is based 
on the total number of foreign workers present in the CNMI as of August 
2008 (19,083), as reported by the CNMI government, after subtracting 
out: The number of garment factory workers assumed to have returned to 
their home countries since that time (1,500); the number of foreign 
workers eligible for visa classifications under the INA (2,090); and 
the number of foreign workers ineligible for a grant of CW status (950 
private domestic household workers and other ineligible workers).
    3. The number of jobs currently held by foreign workers will not 
change during the transition period. We assume that the number of jobs 
currently held by foreign workers represents the future demand for 
foreign workers, or the number of jobs available for such workers. We 
make this assumption because CNMI's economic conditions are changing, 
and we lack the data to definitively predict the future state of the 
CNMI economy and its resulting impact on the labor market for foreign 
workers. We also do not know the rate at which resident workers would 
replace foreign workers.
    4. The current number of out-of-status foreign workers is 1,000. 
The CNMI government estimates that 1,000 out-of-status foreign workers 
were present in the CNMI as of August 2008. The CNMI government's 
established cap of 22,417 CNMI foreign work permits is sufficient to 
allow employers to bring all of these workers into lawful status prior 
to the beginning of the transition period.
    Collectively, these assumptions result in a scenario where no 
shortage of labor is anticipated. Therefore, this analysis focuses on 
estimating the change in costs associated with obtaining status for 
foreign workers from USCIS instead of from the CNMI government. 
However, it is also possible that annual reductions in the number of 
grants of CW status could result in a shortage of labor, adversely 
affecting the CNMI economy. As previously described, DHS will assess 
and reduce the number of grants of CW-1 status annually based, in part, 
on the economic conditions in the CNMI, consultation with the 
government of the CNMI and other Federal government agencies, and 
employment opportunities available for the resident workforce. 
Consequently, we are unable to determine conclusively at this time 
whether a shortage of labor will take place during the transition 
period.
    These assumptions are uncertain. Depending on how DHS reduces the 
number of grants of CW status during the transition period, if the CNMI 
economy experiences a surge in the demand for the type of foreign labor 
that is ineligible for visa classifications under the INA and exceeds 
the CNMI status cap, or if the number of out-of-status foreign workers 
has been underestimated by the CNMI

[[Page 55102]]

government, the rule could have negative impacts, perhaps significant, 
on the CNMI economy. The absence of a defined schedule for reducing the 
CW status cap, combined with the general lack of CNMI economic and 
production data and changing conditions of the CNMI economy, preclude a 
reliable analysis of alternative scenarios exploring these impacts in 
depth.
    In our analysis, DHS first estimates the current and future 
baseline demand for foreign workers in the absence of the rule. In this 
baseline analysis, we consider the prevailing economic conditions of 
the CNMI to estimate the future demand for foreign workers and the 
total number of foreign work permits that would be issued under CNMI 
labor law absent the rule. Next, we characterize the number and type of 
CW status grants and nonimmigrant worker visas available under the INA 
that would be issued as a result of the rule. We consider the number of 
affected businesses and foreign workers as well as the foreign workers' 
work and professional qualifications, eligibility based on employer or 
occupation, and current status in the CNMI. We then estimate the 
component costs that CNMI employers would incur to apply for and obtain 
the requisite work permits (baseline regulatory environment) and CW 
status for foreign workers (rule). We then combine this cost 
information with our estimates of the number of grants of CW status 
that would be issued to calculate the incremental direct costs of the 
rule. Finally, we discuss qualitatively the potential impact of changes 
in labor costs on the CNMI economy and the distributive effect of the 
rule on the revenues of the CNMI government.
    We do not consider in our analysis separate costs to the CNMI or 
the U.S. Federal government to administer the current CNMI permit 
program and this rule, respectively. We assume that the fees associated 
with applying for and obtaining the requisite permits and visas account 
for the cost to each respective government of adjudicating petitions 
and providing the relevant documentation.
    As of November 28, 2009, the beginning of the transition period and 
the implementation date for this regulation, we estimate that 17,583 
foreign workers and 1,176 businesses in the CNMI will be subject to the 
rule. Based on the available data, we estimate that approximately 2,090 
of these workers may qualify for a nonimmigrant work visa available 
under the INA, and at least 950 private domestic household and other 
ineligible workers will not be eligible for CW status, leaving 14,543 
foreign workers eligible for CW status. In addition, we estimate that 
approximately 2,100 spouses and dependent children of foreign workers 
will apply for admission under a second CW status category.
    We consider and evaluate the following four alternatives:
    Alternative 1 (the chosen alternative): Only aliens lawfully 
present in the CNMI may qualify for CW status. An employer petitioner 
can name more than one worker or ``beneficiary'' on a single Form I-
129CW petition if the beneficiaries will be working in the same 
eligible occupational category, for the same period of time, and in the 
same location. CW status is valid for a period of 1 year.
    Alternative 2: Same as Alternative 1, but an employer petitioner 
can name only one eligible beneficiary on each petition.
    Alternative 3: Same as Alternative 1, but CW status is valid for a 
period of 2 years.
    Alternative 4: Same as Alternative 1, but aliens lawfully present 
as well as aliens unlawfully present in the CNMI as of the beginning of 
the transition period (November 28, 2009) may qualify for CW status.
    We estimate the incremental costs on an annual basis over the same 
period of time as the transition period, beginning with the year 2010 
(to simplify our cost analysis by estimating the incremental costs on a 
calendar year basis, we assume the transition period begins 1 month 
later on January 1, 2010) and ending with the year 2014, in the absence 
of any extension made by DOL. In addition, we estimate costs for the 
20-month period prior to the onset of the transition period (May 8, 
2008, to December 31, 2009) to account for the incremental costs of 
issuing CNMI work permits to those foreign workers who are currently 
out-of-status in the CNMI, thus allowing them to be eligible for CW 
status or INA visa classifications under Alternatives 1, 2, and 3 of 
the rule.
    The incremental costs represent the change in the cost of obtaining 
the necessary CW status and INA visas under the rule from the baseline 
cost of obtaining foreign work permits under the current CNMI system. 
We estimate that the baseline cost for issuing CNMI work permits to the 
16,583 in-status foreign workers presently in the CNMI is about $4.9 
million annually. Table 1 summarizes the results of the regulatory 
analysis.

 Table 1--Summary of Estimable Incremental Direct Costs of the Rule: Net Permit and Visa Costs Incurred by CNMI
                    Employers (CNMI Businesses and CNMI Government), 2009 Dollars in Millions
----------------------------------------------------------------------------------------------------------------
                                                                        Year
                                   -----------------------------------------------------------------------------
            Alternative              May '08-
                                     Dec '09      2010        2011       2012       2013       2014      Total
 
----------------------------------------------------------------------------------------------------------------
Undiscounted
----------------------------------------------------------------------------------------------------------------
Alternative 1.....................      $0.30       $0.12      -$3.4      -$3.4      -$2.6      -$3.4  .........
Alternative 2.....................       0.30        5.1         1.6        1.6        2.3        1.6  .........
Alternative 3.....................       0.30        0.12       -4.6       -3.4       -3.8       -3.4  .........
Alternative 4.....................          0        0.12       -3.4       -3.4       -2.6       -3.4  .........
----------------------------------------------------------------------------------------------------------------
3% Discount Rate
----------------------------------------------------------------------------------------------------------------
Alternative 1.....................      $0.30       $0.11      -$3.2      -$3.1      -$2.3      -$2.9     -$11.2
Alternative 2.....................       0.30        4.9         1.5        1.4        2.1        1.3       11.5
Alternative 3.....................       0.30        0.11       -4.3       -3.1       -3.4       -2.9      -13.4
Alternative 4.....................          0        0.11       -3.2       -3.1       -2.3       -2.9      -11.5
----------------------------------------------------------------------------------------------------------------
7% Discount Rate
----------------------------------------------------------------------------------------------------------------
Alternative 1.....................      $0.30       $0.11      -$3.0      -$2.8      -$2.0      -$2.4      -$9.8

[[Page 55103]]

 
Alternative 2.....................       0.30        4.7         1.4        1.3        1.8        1.1       10.6
Alternative 3.....................       0.30        0.11       -4.0       -2.8       -2.9       -2.4      -11.8
Alternative 4.....................          0        0.11       -3.0       -2.8       -2.0       -2.4      -10.1
----------------------------------------------------------------------------------------------------------------
Note: Detail may not sum to total due to independent rounding. These costs do not include the CW educational fee
  and the H-1B visa American Competitiveness and Worker Improvement Act (ACWIA) fee because these fees represent
  transfer payments under Executive Order 12866 and are redistributed in the economy. Estimated costs for the
  period prior to the beginning of the transition period (May 2008 through December 2009) are assumed to be
  largely incurred in 2009; thus, these costs are not discounted to calculate their present value in 2009.

    The total present value costs of Alternatives 1, 3, and 4 are 
projected to range from -$9.8 million to -$13.4 million depending on 
the validity period of CW status (1 or 2 years), whether out-of-status 
aliens present in the CNMI are eligible for CW status, and the discount 
rate applied. These negative values indicate that society will 
experience a net cost savings as a result of implementing one of these 
three alternatives instead of the baseline. These savings are 
attributable to the flexibility of allowing multiple beneficiaries to 
be included in a single Form I-129CW petition, which is in contrast to 
the current CNMI permit system that requires an application and fee 
paid for each employee. The additional costs for applying for and 
obtaining CW status for spouses and children and INA visas for certain 
qualified foreign workers do not outweigh the benefits of submitting a 
single petition for multiple beneficiaries seeking CW status. In 
comparison to the chosen alternative (Alternative 1), increasing the CW 
status validity period from 1 year to 2 years (Alternative 3) results 
in additional cost savings of about 20 percent. Additionally, allowing 
out-of-status workers eligibility for CW status (Altern